Martin v. Chambers

• Decision Date: 31 January 1877
• Citation: 1877 WL 9438,84 Ill. 579
• Parties: JOHN W. MARTINv.GEORGE W. CHAMBERS.
• Court: Illinois Supreme Court

84 Ill. 579

1877 WL 9438 (Ill.)

JOHN W. MARTIN

v.GEORGE W. CHAMBERS.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding. This action is indebitatus assumpsit. The declaration originally contained only the common counts, and, the general issue having been filed, a trial was had before a jury, who found for plaintiff $562.50. That verdict was set aside by the court, and a new trial awarded. Afterwards, plaintiff, by leave of court, amended his declaration by adding a special count, in which it was set forth, in substance, that plaintiff had bought of defendant seven and one-half acres of land, at $500 per acre, which consideration he had fully paid, but that, before he received a deed, defendant made a plat of the land, and caused it to be recorded in the proper office, by which plat a strip of land, containing one acre, was set aside and reserved for a street, in the city of Jacksonville, when certain conditions should be complied with; that what remained of such tract of land was deeded to him by the description of lot 13, in Chambers' third addition to Jacksonville, and, in fact, contained only six and fifty one-hundredths acres, and that defendant, although requested, had refused to convey to plaintiff the residue of such tract of land.

In other amendments, made by leave of court, it is averred plaintiff entered into possession of the land, and was entitled to a conveyance of the whole tract; that, when he received a deed for lot 13, he supposed it conveyed to him the entire tract of seven and one-half acres, and that he did not know to the contrary until long afterwards. A demurrer was sustained to the special count, both before and after it had been amended, and plaintiff has preserved his exceptions to the rulings of the court.

All the testimony in the case is that of plaintiff. He states he bought of defendant seven and a half acres of land, by actual measurement; that he assisted in making the survey; that he paid for the land by giving his promissory notes; has since paid one of them,--in all, about $1800, with interest,--and that the other note has been assigned by defendant, but is not paid; that defendant made him a deed, conveying to him the seven and one-half acres, reserving a vendor's lien; that, afterwards, when he paid him the amount of one note, he procured defendant to make him a warranty deed, so that, if he wanted to sell the land, it would be free from incumbrance; that defendant made the deed for lot 13 as platted; that he supposed it described the entire tract he had bought, and knew nothing to the contrary until long afterwards; that defendant told him he had deeded one acre to the city for a street, and could not now deed it again to him; that it was timber land; that he entered into possession, and that the land set apart for a street had never been used for that purpose, no street having been opened.

On motion of defendant, the court excluded all evidence given by plaintiff, to which he excepted. There being, then, no evidence before the jury to be considered, the court refused...